The Washington PostDemocracy Dies in Darkness

Power struggles erupt as governors and state legislatures fight over coronavirus response

Mississippi senators stand Friday in the capitol gallery as they listen to discussion over legislation that would remove spending authority over $1.25 billion in federal coronavirus stimulus money from Gov. Tate Reeves. (Rogelio V. Solis/AP)
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When coronavirus cases started showing up in the Deep South in mid-March, Mississippi legislators quickly fled the state capitol in Jackson to ride out the coronavirus pandemic in the relative safety of their hometowns.

But they couldn’t stay away when the federal money showed up.

Last week, Gov. Tate Reeves (R) said he was prepared to start spending some of the nearly $2 billion that Congress and the White House sent to his state to respond to the pandemic. But on Friday, after legislative leaders ordered lawmakers to hustle back to the capitol, the Mississippi Senate and House of Representatives voted to strip Reeves of his power to spend federal money without their approval.

The governor responded angrily at a news conference Monday, calling the move “power politics at its worst.”

“While they think they may be attacking me, and they are hurting me, I believe it is you, the people of Mississippi, that is being attacked,” Reeves said during a news conference Monday.

Reeves’s frustration is an example of the challenges that governors nationwide face as state legislators become more assertive in challenging executive authority as the coronavirus pandemic drags on. From Kansas to New Hampshire, state lawmakers are rushing to sponsor legislation, file court challenges and make public statements on what they see as gubernatorial overreach on matters ranging from the spending of federal dollars to whether their neighborhood hair salon or tavern should remain closed.

At stake is who will divvy up more than $100 billion in federal aid while also gaining the upper hand in election-year political battles that are testing leaders in both parties. In the longer term, the outcome of the fight between lawmakers and governors stands to reshape how state governments respond to disasters for decades into the future.

This week, the Wisconsin Supreme Court heard oral arguments in a lawsuit Republicans brought against Gov. Tony Evers (D), challenging his extension of a stay-at-home order; lawmakers in Michigan sued Gov. Gretchen Whitmer (D) for doing the same.

In Ohio, where Republican Gov. Mike DeWine has been widely praised for his leadership during the crisis, legislators in his own party are pushing to narrow his ability to act going forward.

“We have an epic abuse of power,” said Rep. John Becker, a Republican who plans to sponsor a bill that would strip DeWine of his power to unilaterally mandate that stores and businesses close during an emergency. “The governor is making these decisions, along with unelected bureaucrats, when it should include the collective wisdom of the General Assembly that is elected by constituents from across the state.”

In interviews, legislators acknowledge that polls show many governors are receiving high marks from the public over their response to the crisis. But legislators say they are now speaking up more forcefully because they are also being inundated with phone calls and emails from constituents who have become newly engaged in understanding the power of state government.

For decades, they say, the public often overlooked the influence of state lawmakers, whose roles were often muddled between the tense partisan policy debates in Washington and the hyperlocal decisions made by mayors and town councils.

But with governors now on the front lines of increasingly polarizing decisions about shutting down or reopening businesses amid the pandemic, the role of state legislators is also being elevated.

“You are seeing a lot of frustrations that one man for the last two months has been making unilateral decisions affecting the whole state,” said Ryan Warner, a Republican state legislator in Pennsylvania, where the legislature has been challenging Gov. Tom Wolf’s (D) decision to shut down most businesses.

Initially, the tensions between legislators and governors appeared to have a distinctly partisan undercurrent as GOP lawmakers pressed Democratic governors, many of whom took the swiftest action in closing their states as the virus began to spread. But the battles have grown bipartisan in recent days as more governors come under fire from lawmakers.

In New Hampshire, Democrats are challenging Republican Gov. Chris Sununu over his authority to spend federal dollars without legislative oversight.

Under the $2 trillion emergency spending bill that President Trump signed into law in late March, the federal government sent at least $1.25 billion to each state to help respond to the crisis while shoring up government finances. The law gives states considerable leeway in how to spend the money, but they are not supposed to use it to replace existing revenue sources.

When Sununu moved to send some of the money to local communities, however, the leaders of the New Hampshire House of Representatives and state Senate filed a lawsuit, arguing the governor should first have to consult with the legislative finance committee. A judge dismissed the suit, but lawmakers have filed an appeal, said House Speaker Steve Shurtleff (D).

The fight over who can spend the federal dollars has become especially bitter in Mississippi, where nearly 8,500 people have contracted the virus and almost 400 have died.

The fierce intraparty split enraged Reeves, who planned to operate under a decades-old state law that states the governor is tasked with managing and spending federal funds “for the purpose of emergency management.”

Reeves argued that governors directly spent federal aid after Hurricane Katrina and the BP oil spill and during the 2008 economic crisis.

Legislative leaders, including Lt. Gov. Delbert Hosemann, who presides over the state Senate, countered that no one individual should have sole discretion over such a large amount of money.

But in his news conference, a visibly angry Reeves questioned how the legislature could quickly spend the money, in a way that saves lives and boosts the economy, when it’s now readjourned until May 18.

“There is no time for 174 legislators to spend weeks and weeks, and months and months, arguing,” said Reeves, who brought up the matter up with Vice President Pence on a conference call this week.

In other states, lawmakers are directly challenging a governor’s authority to order the mass closure of businesses for a pandemic that has so far killed more than 75,000 people nationwide and infected more than 1.2 million.

In Kansas, Democratic Gov. Laura Kelly ran afoul of the state’s legislative coordinating council after she expanded an early stay-at-home order to include church services. The council moved to revoke the order, with the state’s Supreme Court ultimately ruling that the council had overstepped its authority. Two churches later sued the state over the order in federal court. Kelly’s administration ultimately settled with those churches, allowing their in-person services to proceed.

Kelly then announced a three-phase plan that reopens most of the businesses in the state by May 18 but has nonetheless prompted criticism from Republicans and citizen protests. The state Senate president, Susan Wagle — a candidate in the hotly contested Republican primary for the U.S. Senate seat being vacated by a retiring Sen. Pat Roberts (R) — said Friday that Republicans must act to “rein in an out-of-control” governor and put forth her own plan to reopen businesses sooner.

State legislators decided this week that the legislature will return for one day only, on May 21, to address coronavirus concerns. That left the GOP scrambling to see if committees can prepare legislation for a full vote that day, which could affect the way the state spends $1.25 billion in federal aid. Among the issues the legislature is considering are access to low-interest loans, limiting business liability caused by the coronavirus and removing penalties on unpaid taxes.

Kelly’s spokesman said in a statement Thursday that she has formed a bipartisan economic recovery task force for an “all-hands-on-deck” approach to pandemic recovery.

“Kansans want their leaders working together to pursue impactful, meaningful change,” the statement said.

At times, the back-and-forth has descended into the absurd, with one Republican state representative demanding to know the license number of any hairdresser who cut or colored Kelly’s hair since March 12, as the state’s salons remain shuttered.

Kelly later told the Topeka Capital-Journal newspaper her husband had trimmed it.

The power struggle within state capitols is occurring just as national Democratic groups hope their party can reclaim control of several legislative chambers in the November elections. Republicans have a majority control in 29 state legislatures, according to the National Conference of State Legislatures.

As state battles over the coronavirus intensify, the Democratic Legislative Campaign Committee has been targeting Republican lawmakers that it believes have been pushing to reopen the economy too quickly.

“State governments have an outsized impact on people’s day-to-day lives and this crisis emphasized that fact in stark terms,” said Jessica Post, executive director of the DLCC. “Trump made it clear the states are on their own. Democrats are filling the void in leadership while the GOP response has been a total nightmare.”

But in many states, Republican lawmakers believe they now have a political advantage in challenging a governor’s authority. The calls to their office from small-business owners and others, they say, demonstrate that the public believes there needs to more scrutiny of how governors are making decisions and allocating resources.

Minnesota state Sen. Julie Rosen, a Republican who chairs the Senate Finance Committee, said she often hears from small-business owners who are losing their livelihoods because of the state shutdown.

“We need to trust the general public more. . . . Because it doesn’t make sense you can still walk into a Walmart, but you still can’t go get your watch fixed,” she said.

In Illinois, the lawmakers who been challenging Illinois Gov. J.B. Pritzker can already point to some victories. The state has the nation’s sixth-highest number of coronavirus cases, with about 70,000 residents testing positive. More than 3,000 residents have died.

After Pritzker (D) extended his state’s stay-at-home order, one GOP state representative, Darren Bailey, won a temporary restraining order stating the governor’s directive did not apply to him.

Now, Illinois state Sen. Dan McConchie (R) is hoping to build off Bailey’s court win by pushing for legislation that would require a governor to consult with the legislature before any emergency order can be extended past 30 days.

“Having this multitude of voices at the table is helpful in normal times, but absolutely critical during a state of emergency,” McConchie said in an interview. “The alternative is what we have now, where there is virtually no oversight over the governor whatsoever unless you go to court.”